Judge guts much of immigration measure

September 29, 2011 by Left in Alabama

What's left of the law is still horrible, but Judge Blackburn crippled it more than most commentators understand. A detailed analysis is below the fold.

9/29/11

http://www.decaturdaily.com/stories/Federal-judge-guts-much-of-measure-just-4-significant-portions-of-law-stand,85664

Federal judge guts much of measure; just 4 significant portions of law stand

By Eric Fleischauer

A federal judge’s rulings on the Alabama immigration law elicited quick claims by the governor and the state attorney general that it was a victory, but a careful reading of the 234 pages suggests otherwise.

Judge Sharon Blackburn — an appointee of former President George H.W. Bush — left only four significant portions of the law standing in her rulings Wednesday, and two of those just barely.

She upheld Section 15 of the law, which prohibits employers from hiring illegal immigrants and requires all employers — regardless of size — to enroll in the otherwise optional federal E-Verify program. This ruling was no surprise, as the U.S. Supreme Court this year upheld a nearly identical portion of Arizona’s immigration law.

Blackburn also upheld Section 27, which prohibits state courts from enforcing contracts with illegal immigrants. This was probably the most dramatic loss for those challenging the law, commonly known as HB56. She ruled that nothing in federal immigration laws indicated Congress intended to prevent states from invalidating such contracts.

The judge also upheld Section 12, but she did so with language that should have legislators scrambling for an eraser.

Section 12 requires law enforcement officers to check the immigration status of people they have already stopped for another offense if they have a “reasonable suspicion” the person is an illegal immigrant. The judge ruled it was theoretically possible that officers would not violate due-process rights when enforcing the law, and thus she could not block it. She suggested that most detentions that take longer than resolution of the non-immigration purpose of the stop, however, were likely to violate the detained person’s due-process rights.

She noted that, unlike federal immigration officers, state law enforcement officers have “not been trained to avoid racial profiling.”

“Without such training,” Blackburn wrote, “Section 12(a) may well be applied in a discriminatory manner that constitutes an unreasonable seizure,” and “may result in lawsuits.”

She gave Alabama just enough rope to hang itself.

Blackburn also upheld Section 28, which requires public elementary and secondary schools to collect information on the citizenship of students and their parents before they enroll.

While she discounted plaintiffs’ concerns that the law would deter immigrants from attending school, she based her ruling on a narrow interpretation of the law that limits its application.

Initially, she concluded that the law fails in its effort to require schools to determine the citizenship of parents.

“The court assumes that school officials will not seek to determine the immigration status of parents beyond examination of the child’s birth certificate and that such information is not included on the birth certificate,” she wrote. “Therefore, Section 28 does not compel school officials to determine the immigration status of a parent of a student.”

She was not done whittling away at the section.

Blackburn also ruled that the enrollment that triggers the citizenship check is a one-time event that occurs only when a student first enters an Alabama school. Students already enrolled in kindergarten as of today, for example, will never have to present evidence of citizenship.

Based on her narrow interpretation of Section 28, she ruled that none of the plaintiffs had a claim because they would not be harmed by the law.

The remainder of Blackburn’s three opinions systematically tore apart HB56.

She blocked the state from enforcing Section 8, which attempted to prevent illegal immigrants from attending public post-secondary schools. The law overreached, she wrote, because it prohibited enrollment by some immigrants who, while not U.S. citizens, were nonetheless legally present in the state. The state attempted to create a classification of immigrants, “but only Congress may classify aliens.”

Blackburn also blocked the state from enforcing a centerpiece of HB56, Section 11(a), which made it a crime for illegal immigrants to seek or perform work in the state. Congress, she wrote, intentionally refrained from making it a crime for illegal immigrants to take jobs, instead limiting enforcement to employers who knowingly hire illegal immigrants. HB56 violated the Supremacy Clause by creating a crime that conflicted with Congressional intent.

Possibly the most important victory for the plaintiffs involved Section 13, which purported to criminalize the act of harboring, transporting or renting lodging to an illegal immigrant. Blackburn, siding with courts that reviewed similar provisions in the Georgia and Arizona immigration laws, blocked the state from enforcing this section entirely. While federal law prohibits harboring an illegal alien, HB56 defined “harboring” more broadly than the federal law. Moreover, she wrote, “Section 13 imposes no obligation on Alabama courts to take guidance from federal courts and agencies in interpreting the word ‘harboring.’”

Because of these defects, Blackburn ruled that Section 13 was preempted by federal law.

The judge also prevented the state from enforcing portions of HB56 that prohibited employers from taking business tax deductions on wages paid to illegal immigrants, and blocked a provision that gave citizens the ability to sue employers who hired illegal immigrants.

While Blackburn’s decisions are not final — the plaintiffs only sought a preliminary injunction — courts rarely reverse course in their final rulings.

What’s left of HB56 is a pale shadow of the law state legislators proudly unveiled in June.